How to Sue
- 1 How to get $2,500 or more per junk fax you receive
- 1.1 Process
- 1.2 Which court?
- 1.3 Small claims court overview
- 1.4 How to get up to $6,000 per page ($2,500/pg in Calif small claims)
- 1.5 Serving your claim
- 1.6 Important tips: it's all about collectability
- 1.7 Preparation for court
- 1.8 To bring with you to court
- 1.9 Small claims process
- 1.10 An innovative way to always get paid
- 1.11 Advice on filling out forms
- 1.12 Sharing evidence
- 1.13 Subpoenas
- 1.14 Countersuits
- 1.15 Appeal by the defendant
- 1.16 If the judge goofs
- 1.17 Jail time
- 1.18 Collecting
- 1.19 After they pay you
- 1.20 If you aren't eligible for small claims
- 1.21 Small claims courtroom script
- 1.22 The law
- 1.23 Interpreting the law
- 1.24 Additional tips
- 1.25 Success Stories
- 1.26 More information
How to get $2,500 or more per junk fax you receive
I wrote this page to collect advice I received from various people and I use it for my own reference and to jog my memory as to what to do. It is posted here for my convenience, but you may find some of the information here useful as well. You should always consult an attorney before taking any legal action.
The simplest thing is not to sue yourself, but join an existing litigation. This minimizes your time and trouble:
If you still want to sue yourself, keep reading...
Simplified step-by-step instructions for what I did to sue people who sent me illegal faxes can be found here:
- How to get $2,500 per junk fax (California only).
- If you are not in California, it's more complicated; see How to get $2,500 per junk fax (Outside California).
Otherwise, here is some useful background information
- You must first find out who is faxing you. See How to identify who is sending you junk faxes.
- Decide who to sue: the advertiser or the fax broadcaster, or both. Decide whether you want to sue the people individually or just the company or both. Generally, suing in small claims means you are confined to people who live in (or are physically present in) your state and companies that have a presence or do substantial business in your state. Sue parties that you think you can collect from at the end of the day. Suing a sleezy advertiser might be a waste of time. I'd suggest you name as many people and companies in your state as you can. See the fax.com profile for people at fax.com you can sue. I typically ask for $2,500 per fax (unsolicit + ID violation limited to the Calif small claims $2,500 limit). So you can end up with a $25,000 judgment for a few hours worth of effort which is a reasonable return on your time investment. The nice part is you're helping to make the world a better place by reducing the number of junk faxers. See for example, this case against Robert Battaglia.
- Call the junk faxer. Tell them about this website. Tell them about your other victories in small claims or district court (if you have any, this always helps). Offer to settle for $400 per fax if they save you the trouble of taking them to court and suing for a minimum of $500 and a maximum of $1,500. But if the headers are not compliant, then you can, and should ask for more. Please see the Junk Fax Q&A for details on how to get $6,000 per page.
- The greater the number of victories you have in court, the higher the likelihood that a defendant will settle over the phone. Most will not believe you are serious and the more evidence you have that it's cheaper to pay now than pay later, the more likely you will be to get a settlement early.
- In order to sue in small claims court, you must first send them a demand letter. Here is the demand letter Propel uses and the settlement agreement Propel uses and a sample Settlement Agreement that I use personally which you'll want to customize to your situation, e.g., by talking about how you've filed against other junk faxers and collected. If you have a particularly good demand letter, send it to us and we'll post it here.
- I can tell you the demand letter works sometimes. We've settled several cases on the basis of a demand letter (one as high as $10,000) because they know we are serious because we are serious. We have a demonstrated track record of taking people to court who don't settle. We file class actions against these companies so their downside is very high if they don't settle.
- The flakey companies will ignore you because they plan on disappearing before your lawsuit comes to trial. Therefore, it's best to focus your time on those companies that have "staying power."
- Honest companies will settle. Unfortunately, I've found that the vast majority of junk faxers will ignore your letter, so you have to take it to the next step, which is to begin small claims process if applicable (i.e., the blaster or the advertiser is within the same state as you are). Otherwise, skip to to "If you aren't eligible for small claims."
- If you are diligent, you will win. The law is on your side. You may win in small claims if you get a good judge as Robert Fenerty did and as Lawrence Markey got, or you may have to appeal. But if you are persistent, you will win.
- If the sender of the fax (the company that originated the content) is located in your state, you can sue them in small claims. If the fax broadcaster is located in your state, you can sue them in small claims. If you can "catch" them in your state and serve them, you can sue them in small claims.
- You can always sue in small claims. They can't force you to consolidate your claims and force you out of small claims. Conversely, you can't split a claim to get into small claims but that doesn't apply here.
- You can sue them either in your state or their home state (or in federal court if you are in different states and you have >50 faxes).
- If the fax is from out of state, you may still be able to use small claims if you can get the judge to sign the form allowing you to serve your secretary of state (details below). Otherwise, you'll need to file in Superior Court. That means you'll need a lawyer and it can get expensive. Don't do this unless you have at least 10 faxes from the same advertiser and that advertiser has staying power (i.e., you're likely to collect because it is a legitimate business). Otherwise, you'll lose money. Here's a list of attorneys who handle junk fax cases.
Small claims court overview
See California Courts Self-Help Small Claims Small Claims Court Basics for more info or the small claims website for your state. We've also prepared a short document that describes the process: How to Sue in Small Claims Court
In general, here are the steps:
- First, find out whether small claims cases in your state have been successful. They work in California, New Jersey, Maryland, etc.
- Save the original fax. Mark the date it was received if there is no date on the fax already. You can sue for four year from when the fax was received (the TCPA is a federal law and the 4 year federal statute of limitations applies).
- Send a demand letter by certified mail. What's really cool is you can now send a certified letter online without having to go to the post office. Here's the demand letter I use. Here's another junk fax demand letter. And here's another Junk Fax Demand Letter. Keep a copy. You'll need to hand the demand letter and the original fax to the judge when you appear in front of the judge. I sent mine electronically via USPS - NetPost Certified Mail, but you don't have to send it this way. I find out their email address and send it to them. Here's an aggressive junk fax Demand Letter and Settlement agreement.
- In your demand letter, always include a deadline (such as 10 days from receipt) and I'd strongly suggest including a "ready to file" copy of the complaint with the demand letter. You'll be amazed at how much more effective that is. Here is a draft complaint you can modify.
- If you don't get a response within 30 days, file the paperwork with the court. You'll be assigned a court date. In CA, if you're including a count under the state statute (which is not the case for junk faxes), you're required to notify the Defendant via cert mail, return receipt requested a minimum of 30 days prior to filing suit.
- Pay a process server to serve the Defendant the suit you filed. Be sure to allow enough time before your court date; for example, if the Defendant is outside your county, you must allow additional time before the court date
- Show up in court, explain the facts of the case (that you got a fax without your consent), hand the judge the original fax and a copy of the demand letter. Also hand the judge any correspondence between you and the Defendant. It also helps to hand the judge a copy of the "one pager" summary of the law appropriately modified for your case. See also the list below for what to bring to court.
- If the other party doesn't show up, and you get a good judge, you'll get a judgment for $500 or $1,500 on the spot (double that if the headers are not compliant). If the other party shows up, the judge will take the case under submission and mail you his decision within 48 hours.
- The Defendant then has 30 days to pay you. If they don't, you can give it to a collection agency (often this is the same agency you used to serve the Defendant).
- When they pay you, immediately return the judgment form to the court, or you can be fined.
How to get up to $6,000 per page ($2,500/pg in Calif small claims)
- Most junk faxes have two violations: sent unsolicited, and violating the header regulations (see the Q&A for details).
- The law says if the Defendant willfully or knowingly violated the TCPA, the judge may award $1,500 per violation. The "or" is important.
- "knowingly" meant that the act was done voluntarily and intentionally and not because of mistake or accident.
- "willfully" does not require a criminal or other bad motive on the part of the responsible person, but simply a voluntary, conscious and intentional act.
- So the fact that the advertiser entered into an agreement to send faxes which probably had an indemnification clause demonstrates both knowingly and willfully.
- Here are some actual fax.com advertiser contracts and case law on willful and knowingly. In Jobe, the Court of Appeals defined what constitutes 'knowingly'; where in Newsome, the Court of Appeals defined 'willfully'. Both of these cases are from the Fifth Circuit, so they may not specifically apply to the Ninth Circuit. As you can see from the contracts, item 11 places the 'buyer' on notice of the possible legal repercussions of fax broadcasting by the seller, and by implication said notice can be inferred to the 'seller.' The contracts were between different 'buyers' than the indemnity agreement buyer.
Serving your claim
Here's a web page to find a process server in any area of the US.
You can use substituted service without due diligence if you are using small claims court.
Here's info about serving a PO Box.
Here are some notes about substituted service if you can't serve them directly. Note that due diligence is NOT required in small claims. You can sub serve them on your first attempt!
- The statute to start with is Cal Code Civ Pro 415.20. The case to start with is Ellard v. Conway (2001) 94 Cal.App.4th 540, 545-547, 114 Cal.Rptr.2d 399, 402-403.
- In Ellard, substitute service was proper where a process server first attempted to personally serve defendants at their last known residential address, and, upon learning they no longer lived there, obtained a forwarding address from the U. S. Postal Service.
- This amounted to reasonable diligence in attempting personal service thus making substitute service available.
- Substitute service at a private/commercial post office box was proper, because that was the forwarding address provided to the Postal Service, thus making it defendants' "usual mailing address,"
- Also, the manager of the facility knew the defendants and told the process server they received mail there.
- Under the circumstances, it was more likely than not the manager would deliver the summons and complaint, and no facts suggested personal or substituted service was available at any other address or on any other individual.
- Thus, CCP § 415.20(b) authorized substitute service on defendants at their private post office box.
- Many cases have followed Ellard, most are unpublished California cases. There is a good federal case that followed Ellard. I say good because Ellard itself actually distinguished a federal case that went the other way. The case is Smilde v. Melchner, No. C-00-2687 JCS (N.D. Cal. Feb. 15, 2002). 2002 U.S. Dist. LEXIS 3809, and it discusses the matter at some length.
- If I can't get him in three attempts of personal service, Calif law allows me to subserve with a responsible adult and drop a 2nd copy of the suit in U.S. Mail.
Since fax.com people tend to dodge service, it doesn't matter if you get within earshot and throw the papers at them. Here's the scoop:
- The well settled rule, supported by a plethora of authority, was succinctly stated by a California intermediate appellate court: "A person may not deny personal service of process on the grounds of lack of delivery where the delivery was deliberately prevented by the action of the person to be served." Hankla v. Governing Board, 46 Cal. App. 3d 644, 655 (1975). In other words, a person may not intentionally "refuse" service of process. Such a person is deemed to have been served.
- A great case on this is In re Ball, 2 Cal. App. 2d 578, 38 P.2d 411 (1934). A process server attempted to serve papers on a businessman. The same process server had previously served other papers on this same businessman. The server approached the man, coming within 12 feet of him, and said, "I have here another one of those things for you." The man replied, "You have nothing for me," and began to walk away. "While [the businessman] was moving away in a sidewise manner and looking at the server, the server handed or tossed the process toward [the businessman], it falling a few feet from him, at the same time saying, `Now you are served.' [The businessman] did not pick it up but continued to walk away from the premises." Id., 2 Cal. App. 2d at 579.
- The issue before the California appellate court was whether the service of the process was valid. The court held that it was. "We take it that when men are within easy speaking distance of each other and facts occur that would convince a reasonable man that personal service of a legal document is being attempted, service cannot be avoided by denying service and moving away without consenting to take the document in hand." Id.
- Your case involves the resident agent of a corporation who allegedly "refuse[d] to accept service of process." A corporate agent's refusal of service was the issue in Khourie, Crew & Jaeger v. Sabek, Inc., 220 Cal. App. 3d 1009 (1990). A California statute permitted service on a corporation by "leaving" the process with the person who is "apparently in charge" of the office, and then by mailing the process to the office. Id. at 1013, citing Cal. Code Civ. Proc. sec. 416.10.
- The process server in the case went to the defendant's place of business, but was faced with a locked door. The server rang the bell, and spoke with a woman who refused to give her name and refused to unlock the door. The server "explained his purpose and she stated that she was `not accepting the papers.'" Id. at 1012. The server then told the woman that he was leaving the papers outside of the locked door. He subsequently mailed copies of the papers to the office.
- A default judgment was later entered against the defendant, and the issue before the appellate court was whether the corporation had been properly served. The court answered in the affirmative. See id. at 1012-1014. "It is established that a defendant will not be permitted to defeat service by rendering physical service impossible." Id. at 1013, citing In re Ball, supra.
- For other California cases on the issue, see Crescendo Corp. v. Shelted, Inc., 267 Cal. App. 2d 209 (1968), and Sternbeck v. Buck, 148 Cal. App. 2d 829, 835 (1957).
- Courts in other jurisdictions have followed this rule in various factual contexts. As the Tenth Circuit stated, "a defendant cannot refuse or avoid service on a technical ground, and then exclaim he has not been correctly served." Nikwei v. Ross School v. Aviation, Inc. 822 F.2d 939, 946 (10th Cir. 1987). In Thomas Organ Co. v. Universal Music Co., 261 So.2d 323 (La. Ct. App. 1972), the court considered a case involving Louisiana's long-arm service statute, which allowed service on an out-of-state defendant by registered or certified mail, or by personal delivery by a commercial courier. The court said that "to allow a defendant to defeat service of process by refusing to accept a registered letter . . . would make a mockery of R.S. 13:3204 and render it completely ineffective." Id. at 327.
- For other cases involving "refusals" to accept service of process, see Reliance Insurance Co. v. Mast Construction Co., 150 F.3d 1278 (10th Cir. 1998); European American Bank v. Abramoff, 608 N.Y.S.2d 233 (N.Y. App. Div. 1994); Patel v. Southern Brokers, Ltd., 289 S.E.2d 642 (S.C. 1982); Cortez Development Co. v. New York Capital Group, Inc., 401 So.2d 1163 (Fla. Dist. Ct. App. 1981); Ahlers v. Ahlers, 384 So.2d 474 (La. Ct. App. 1980); McIntee v. Minnesota Dep't of Public Safety, 279 N.W.2d 817 (Minn. 1979); Howard Avenue Realty Corp. v. McIntosh, 352 So.2d 348 (La. Ct. App. 1977); Merriott v. Whitsell, 476 S.W.2d 230 (Ark. 1972).
- Therefore, being "cute" can end up getting someone "burned." Defendants who refuse service of process may find themselves on the receiving ends of default judgments. See Huffer v. Cicero, 667 N.E.2d 1031 (Ohio Ct. App. 1995).
Important tips: it's all about collectability
- Make sure that you only name Defendants that are "collectible", i.e., do some research and make sure the have assets and are not likely to be a flight risk (to another country or just "disappear" or declare bankruptcy)
- Always name at least two Defendants. There are usually many people responsible: the advertiser company, the blaster company, the officers of both companies, the companies and officers of any "middlemen" that have been notified of the violation
- Always name the principals personally. It's a mistake just to name the companies. Companies come and go, but people rarely do. Having the ability to collect against both increases your chance of collectabilility.
- Always file for the maximum $ amount. Due to high filing fees, you should get the max return on investment. For California, the maximum is $2.500 so I always file for 2 faxes on each claim form. I give up $500 potential remedy in doing so, but it means half the paperwork for everyone and maximize the return on investment in your time and minimizes your filing fees in the event it is not collectible.
- Small claims subpoenas can be very powerful in what you can ask people to supply. As long as it is relevant to your case, you can ask for it. If the judge admits it as evidence, you can then give it legally to others to use in their cases. I've asked for phone records, contracts, removal numbers for each advertisement, list of all advertisements, etc. Very powerful.
Preparation for court
- This is excellent overview that is concise: Small Claims
- For additional background, read Zen and the art of small claims
- Read this: TCPA information
- Save all your junk faxes!
- Read this small claims court judgment for the Plaintiff
- Read Junk Fax Q&A
- Read defense arguments
- Read what others are doing
- Read excellent step-by-step guide to How to Use a Federal Law to Make Junk Faxers Pay You and Federal Junk Fax Law which is a single page summarizing the law and how to take action to recover payment.
- Read the process below
- Read How to Collect Money from Arizona Junk Faxers which is excellent and applies in all states.
To bring with you to court
- Trial brief: Here's a short trial brief you can modify
- TCPA information: Hand this to the judge and/or include it in your filing so he can read it ahead of time. This is the single most important thing you can do. Judges have a lot of cases and the simpler you can make it for the judge the better. This document summaries on a couple of pages the whole story. Keep the facts as short as possible as this document shows.
- The second thing is to bring a judgment from a similar court in your area, if you can find one. For example, for California, you can use this and either file it or bring it to court: Fenerty decision.
- In California, I always bring a copy of the Enrolled Bill Report for §17538.4 makes it quite clear that the original California law was enacted to be a stopgap protection until federal law takes effect (see page 2 of the report). I also bring a copy of Kaufman v. ACS Systems (July 22, 2003, B155804) _Cal.App.4th which confirms that California courts have determined that opt into the TCPA is not required and junk fax suits are legal in California. A copy of AB 2944 may also be helpful which shows the repeal of the California law in September 2002 paving the way for the federal law to apply.
Small claims process
- First of all, people have won in small claims court. But you have to be serious about pursuing what you're entitled to. Here's the small claims court judgment from Robert Fenerty's case. The defendants appealed the decision to higher court, but they settled with him out of court, right before the case was going to go to trial. Lawrence Markey won his small claims case against IDC Solutions (a fax.com advertiser), and Markey also won on appeal.
- In California, you must send a demand letter (doesn't have to be return receipt), and you must give the Defendant a "reasonable time" to respond, e.g., 10 days is more than reasonable before you file your claim.
- You must file in the proper courthouse (the nearest to where you live). So even if there are 2 courthouses in Santa Clara County, you have to go to the right one.
- There are typically at least 2 judges who do small claims and there might be a judge on call if you don't want your case heard by the judge pro tem.
- If you can't serve all the Defendants in time on a given claim, you can drop the D's you couldn't serve when you appear in court.
- Check the rules for your state. In California for example, the defendant must be served in California (see the next paragraph). Otherwise, you'll have to sue in Superior Court. Secondly, in California, you're limited to the number of suits you can file per year over $2,500. So if you keep your claims under this and you can file as often as you like against the same defendant....sue them one or two faxes per complaint (and ask for $2,500 if you have two faxes). You can file up to 2 claims per year up to $5,000. The filing fee is only $20 (rises to $35 if you file a lot per year). See California Courts Self-Help Small Claims Small Claims Court Basics for more info.
- Even if the company is located out of state, if they do business in the state (which you can verify by calling them and asking them if they'll take your money), you can sue the company using a special form that you need to get your local judge to sign to serve your own secretary of state who then will serve the defendant. Here's the form used by Orange County to serve out of state defendants. To get the form in Santa Clara County, I had to call the Los Gatos small claims advisor (it isn't on the web!) to fax it to me. The whole trick here is getting the judge to sign it. The law covering this is CA Codes Corp 2111
- Be sure to serve the Defendant at least 20 days before the hearing (15 if in the same county).
- If you lived in San Diego, you were probably out of luck in small claims court. All the judges have decided that they will throw out any junk fax cases by reasoning the California law (CA Business & Professional Code 17538.4) "opts out" of the TCPA. Of course, this isn't true. I spoke with the author of that law (Richard Katz) and he had no clue there was a TCPA. He never intended to make it easier for people to junk fax in California. So much for judges interpreting the letter and/or intent of the law. So you have to sue in Superior Court and appeal it to find a judge who knows how to interpret the law. However, now that we have the appellate court decision, everything is clear
- All proceedings are informal, including the appeal. Rules of evidence apply: it must be admissible (no hearsay, nothing stolen, etc) and it must be relevant to be admitted into the proceeding. Evidence that is accepted by a judge, and not put under seal, is part of the court record and thus publicly available for use in other cases. Actually, the exhibits are returned to the parties, so the evidence is not kept by the court and there is no transcript unless a court reporter is there, which is usually not the case. You normally get a copy of this when you walk out of the courtroom since both sides are required to give copies of the evidence to the other side.
- However, even though you are free to use the information that was admitted, be careful HOW you use it. For example, if you have a debtor's exam and get a list of someone's assets and bank account information, and you then post that information to a website (or cause it to be posted), then you can be liable for invasion of their privacy. If you post someone's home address and phone and then tell all your friends "this is where you can find the guy whose been faxing you," then you can be liable. If you send an email saying "go after this guy", you can be liable. But you can tell people you know of your success. You can post information that tells people how to sue junk faxers. But you can't tell people "you should go sue this particular person and here's how."
- Be sure to focus first on establishing the facts, then talking about the law. In a bench trial, such as small claims, the judges decides on facts and law. If you went to Superior Court and had a jury trial, it is separated out: juries decide on the facts, the judge decides on the law.
- One disadvantage to starting in small claims is that if you lose in small claims court, you may not appeal. But the defendant loses, he can appeal. Also, the judgments can be simple one liners like "the defendant doesn't owe you any money" or it can be an multi-page, well written decision as with Robert Fenerty's case.
- If you reach a settlement outside the courtroom, come back in and tell the judge. They'll record it in case the other party doesn't pay.
- See How to Use a Federal Law to Make Junk Faxers Pay You. Make no mistake. If you choose to pursue junk fax cases, they will definitely consume some of your time. And the settlements and judgments you get will only recompense you for your time (although you can add on your collection costs). This is not a money-making venture. Those who do it, do it for principle, somewhat like the Minutemen, who shed their blood so others could be free. See also Small Claims Court Enforcement of Federal Unsolicited Fax Law.
- Follow the process for your state. If you live in California, here are three really useful links:
- For more details see the contributed article "How To Sue in Small Claims Court". In general the process will be something like:
- Download small claims complaint form
- Fill out and file at courthouse
- Serve the defendant and make sure proof of service is sent to the court before your hearing
- You are notified of court date.
- Come to see what happens before your date to familiarize yourself with what to expect
- Appear on court date. Use the script provided below (bring the fax and any backup documents such as the Q&A if needed)
- When you win, see How to Collect On a Claim
- If the defendant appeals, you'll get a date in superior court. It's just like small claims. You don't need a lawyer. Chances are good the judge will re-affirm the original judgment, but you'll have to argue your case all over from scratch.
An innovative way to always get paid
The judge is unlikely to give you treble remedy if you are suing a "poor advertiser" for the first time (even though he could). So suggest to the judge to award you the minimum $500 per violation x 2 violations (header and unsolicited)=$1,000 if the Defendant pays in 30 days; otherwise, the judgment is for $3,000.
Advice on filling out forms
For your claims, you fill them out, file with the clerk, and you get back a service copy and your copy; the court keeps the original. When you serve it, you send in the original proof of service.
For subpoenas, it's different! You need to bring in 3 copies to the clerk. They stamp one as the original, the other 2 are stamped as copies; one for you, one for the subpoenaed party. They give you all three copies back! You serve one of the copies. Then you return the proof of service with the original subpoena back to the court.
For filing for changes, make sure you use one form per case number. File the signed originals with the court.
You are required to show the other side anything you'll give to the judge. But you are not required to give them a copy of the evidence you submit to the judge. So don't. Keep a copy for yourself, and a copy for the judge.
With subpoenas, you can legally get only stuff that is admissible, and not overly broad or burdensome. This applies both ways (since the D may use a subpoena against you).
To be admissible, evidence must be relevant, Fed. R. Evid. 402, with relevance defined as "the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401.
If you subpoena a witness, you'll have to pay a fee. I just subpoena documents and don't require them to appear. My subpoenas are pretty broad and I've gotten them signed off by the clerk. You should only ask for stuff that is relevant. Don't go overly broad or burdensome or they can legitimately object.
The big advantage of a subpoena is that as long as the judge allows it as evidence, that information can then be used for other cases legally since it is admitted into evidence.
At the hearing, be sure to ask for a copy (or the "copy" brought by the Defendant), or that the court hold the evidence in the court file so you can go back and get a copy. They will charge you 50 cents to $1/pg. You're entitled to get a copy of any public record (anything in a court/case file). You can ask to see the contents then ask that you be given copies of specific pages you request. Here's the scoop:
- Actually, the Federal Freedom of Information Act will NOT be helpful. And, to boot, even the California Public Records Act (http://snipurl.com/5wt1), by which otherwise one would gain access to California agency records, WILL NOT be helpful either (for the courts in California are not "agencies" covered by that act either).
- Public policy requires public records and documents to be available for public inspection to prevent secrecy in public affairs. Craemer v. Superior Court (1968) 265 Cal. App. 2d 216, 222, 71 Cal. Rptr. 193. "[W]here there is no contrary statute or countervailing public policy, the right to inspect public records must be freely allowed." (Ibid.)
- "[I]t is a first principle that the people have the right to know what is done in their courts." In re Shortridge (1893) 99 Cal. 526, 530, 34 P. 227. The public has a legitimate interest in access to court documents because "[i]f public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism." Estate of Hearst (1977) 67 Cal. App. 3d 777, 784, 136 Cal. Rptr. 821.
- Although there is no specific statutory requirement for access to court documents, both the federal (U.S. Const., 1st Amend.) and the state (Cal. Const., art. I, § 2, subd. (a)) Constitutions provide broad access rights to judicial records in criminal and civil cases. Copley Press, Inc. v. Superior Court (1992) 6 Cal. App. 4th 106, 111, 7 Cal. Rptr. 2d 841. "A trial is a public event. What transpires in the court room is public property. . . . There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire [in] proceedings before it." Craig v. Harney (1947) 331 U.S. 367, 374, 67 S. Ct. 1249, 1254, 91 L. Ed. 1546.
- Court records are available to the public in general, including news reporters, unless a specific exception makes specific records nonpublic. Estate of Hearst, supra, 67 Cal. App. 3d 777, 782. Statutory exemptions to disclosure of court records exist (see Government Code section 6254 [the California Public Records Act] for exemptions), as do judicially created exceptions, which generally are temporary in nature. Id. at p. 783.
- The court . . . [possesses] limited power, exercisable under exceptional circumstances and on a showing of good cause, to restrict public access to portions of court records on a temporary basis." Estate of Hearst, supra, 67 Cal. App. 3d 777, 784-785. Policy reasons to restrict access are "anything which tends to undermine that sense of security for individual rights, whether of personal liberty or private property, which any citizen ought to feel has a tendency to be injurious to the public or the public good." Craemer v. Superior Court, supra, 265 Cal. App. 2d 216, 222.
- The burden rests on the party seeking to deny public access to court records to establish compelling reasons why and to what extent the records should be made private. Estate of Hearst, supra, 67 Cal. App. 3d 777, 785. Where the relief extends to sealing permanent court records, the court must be careful to limit its denial of access by narrow and well-defined orders. Id. at p. 785. Due to its temporary nature and its infringement upon the public right to know, a sealing order in a civil case is always subject to continuing review and modification, if not termination, upon changed circumstances. Mary R. v. B. & R. Corp. (1983) 149 Cal. App. 3d 308, 317, 196 Cal. Rptr. 871.
- Pursuant to subdivision (c) of Rule 243.1 of the California Rules of Court ("Rules")(see http://snipurl.com/76g0, titled "Sealed Records"), "[u]nless confidentiality is required by law, court records are presumed to be open." By "open," the Rule means "open to inspection by the public" (compare definition of "sealed" in subdivision (b)(2) of Rule 243.1).
- Other Rules relating to court records in California include Rule 243 of the California Rules of Court (http://snipurl.com/76fw, titled "Court Records"), Rule 243.2 (http://snipurl.com/76g4, titled "Procedures for Filing Records Under Seal"), and Rule 243.3 (http://snipurl.com/76g5, titled "Request For Delayed Public Disclosure").
- In California, Court records may be sealed only by statute or by a court order setting forth findings that (1) there exists an overriding interest supporting sealing; (2) there is a substantial probability the interest will be prejudiced absent sealing; (3) the proposed sealing order is narrowly tailored; and (4) there is no less restrictive means of achieving the overriding interest. (CRC 243.1, 243.2, NBC Subsidiary, Inc. v. Superior Court, 20 Cal.4th 1178 (1999); Copley Press v. Superior Court, 63 Cal.App.4th 367 (1998)). The order must specify the documents and pages, or portions of pages, that are to be sealed. Sealed records may be reviewed only upon an order of the court.
- • -- Material not introduced in, or filed with the court is not public. Court records are not covered by the California Public Records Act. Thus, the Act’s provisions on access, time, and cost do not apply.
- What's Open
- Anyone is entitled to see any evidence introduced in open court and any unsealed court record (including transcripts) in the court file. No fee is required to view records, but there may be a fee for copies.
- • -- Criminal: Executed search and arrest warrants after the 10th day after issuance (Penal Code §1534); grand jury testimony that resulted in an indictment after 10 days following delivery of the transcript to the defendant; (Penal Code §938.1) probation officer reports for the 60 days following sentencing or grant of probation (Pe-nal Code §1203.05); old probation reports when the subject is charged with a new crime; written victim statements (Penal Code §1191.15) after sentence is entered.
- • -- Civil: Settlement agreements that are filed in court. A party seeking to keep an agreement secret must show that the need for secrecy outweighs the presumption of public access (Matter of Hearst, 67 Cal.App.3d 777 (1997)). If a party to the settlement is a public agency, the settlement is public under the Public Records Act (Govt. Code §6254(b)); Freedom Newspapers v. County of Orange, 158 Cal.App.3d 893 (1984)).
- What's sealed
- Criminal: Records of grand juries that do not enter an indictment (Penal Code §924.6); juvenile court records (Welf. & Inst. Code §827), except some records when minors escape detention facilities (Welf. & Inst. Code §828), and after a §602 petition has been sustained for a Welf. & Inst. Code §676(a) offense; pre-sentencing mental evaluation records (Penal Code §1203.03) [the contents may be in Probation Officer Reports]; indigent applications (Penal Code §987.9); any record for which the court finds disclosure would jeopardize a defendant’s right to a fair trial.
- Civil examples: Examples of confidential records to which public access is restricted by law are records of the family conciliation court (Family Code, § 1818(b)), in forma pauperis applications (Cal. Rules of Court, rule 985(h)), and search warrant affidavits sealed under People v. Hobbs (1994) 7 Cal.4th 948. The sealed records rules also do not apply to discovery proceedings, motions, and materials that are not used at trial or submitted to the court as a basis for adjudication. (See NBC Subsidiary, supra, 20 Cal.4th at pp. 1208-1209, fn. 25.) Other examples of records with restrictions on public access are adoption records (Fam. Code §9200); trade secret information (Civ. Code §3426.5); civil attachment records for 30 days upon request of the plaintiff (Civ. Proc. Code §482.050); discovery records such as deposition transcripts, interrogatory answers and other documents obtained in discovery, until filed in court records or introduced in evidence. But a party may be willing to share them.
- If perchance the clerk tells you the records indeed are sealed, ask for a copy of the order that sealed them. If they truly are sealed make a motion to have them unsealed (good luck).
Most people don't comply with the subpoena. If they don't, it looks really bad for them. You have the choice of re-scheduling where they are ordered to produce the documents or be fined by the court. Usually, what happens is that the failure to produce the documents are held against you.
A witness is entitled to fees of $35 per day and 20 cents a mile each way at the time of service
When you request a Subpoena Duces Tecum for telephone records and certain other personal consumer records, the privacy rights of the consumer are protected and he/she is entitled to advance notification that the records are being sought. (CCP 1985.3)
If you are serving a subpoena on someone out of state, they are not legally bound to comply with it unless you do a bunch of complicated maneuvers to get their state to issue your subpoena. If they try that trick (ignoring my subpoena if issued by a state other than their own), I let some people in their home state know about what I'm trying to do since sometime they might be requesting the same information for their case. If they do and their judge allows the evidence, it's public record and I can use it in my next case.
The better way is to serve them in your state, either via their agent for service in your state, or by serving the secretary of state in your state.
- Live Leads Corp refused to respond to my discovery request of:
- 1. Produce a copy of all documents related to any lawsuits against Defendant Live Leads that allege any violation of the Telephone Consumer Protection Act.
- They said : "This information is a public record, discoverable by the Plaintiff and are not relevant to the civil claim by the Plaintiff"
- I assume that "public records" in possession of the Defendant are subject to discovery by the Plaintiff. Otherwise Defendants would simply make all their documents obscurely available in various public places, and then claim that the Plaintiff must go looking for them in the Juno Alaska Library where they are publicly available.
- I also assume that these documents are relevant since they may be used to convince the court that Defendants continue to violate the law and are thus subject to trebled willful damages in the instant case.
- [the Plaintiff is exactly right]
If they file a motion to quash, be sure to attend the hearing on the date stamped by the court on the form. The party requesting the motion to quash will probably be overruled by the judge (99% of the time). And if they don't show, their motion gets denied automatically.
If you are working on stuff or doing research regarding a case with a lawyer, your research (including sources you talked to and what they gave you) can be excluded from discovery as work-product derived material.
- Also pro per litigants such as you may assert work product protection for their own work, such as interviewing witnesses, even without an attorney. Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 136. Generally work product of an attorneys' agents, such as yourself when acting on instructions from your own attorneys, is also protected. Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 647-648
See CA CODE OF CIVIL PROCEDURE SECTION 2016-2036 for more info on this and work product (see 2018).
If they don't comply, the judge can issue discovery sanctions, which can be your attorneys fees (none in a small claims case) or a presumption that the documents say whatever you wanted them to say which of course is a really cool way to make sure that they comply or you win. They can be held in contempt and fined or jailed until they comply, but there is almost no way that would happen.
Request (if you are issuing) or bring (if you were served a subpoena) 2 copies of the material: one for the judge, one for you. Don't give the Defendants a copy; you don't have to.
They may threaten to sue you back for malicious prosecution. This is a joke to scare you. They have to win first (which they won't if you do your homework), then show the case was brought without any merit.
Also, be sure to check whether your state has an anti-SLAPP statute. Massachusetts does, and it's been construed as applying to private lawsuits. Someone who files a malicious prosecution or similar suit against you merely because you've sued them is subject to a special motion to dismiss that gets expedited handling by the court AND entitles you to attorney's fees when you win.
Appeal by the defendant
The Defendant can appeal only if he showed up at the original trial (116.710(d)).
This is just like the original trail; everything is informal. Everything must be presented fresh. You are in front of a real judge. You may be represented by an attorney.
You cannot appeal a default judgment; you have to vacate it first. In order to vacate, you have to show the judge why you didn't show (and have proof). If he vacates, he'll hear the case at that time.
If the judge goofs
I've had a judge give me $50 per page instead of the statutory minimum remedy of $500 per page.
In such cases, if you won, you can ask to vacate the judgment within 30 days. If the judgment is vacated via a C.C.P. 116.725 motion, you get a trial de novo with a different judge, just like a small claims appeal (except no attorneys allowed in this case).
I see no reason why the process couldn't go on and on, other than the fact that most C.C.P. 116.725 motions are rejected. Make a good supporting brief to go along with the motion.
Of course anyone can be jailed for contempt of court but they have to be charged with it. One court won't jail someone for contempt of another court.
However, in many states you can be jailed for refusing to comply with an "informational subpoena" a device served after judgment used to assist the plaintiff in determining where the defendant's assets are. You get one chance to not appear. If you blow that, you can be arrested. Be sure to serve the ORAP with a registered process server or sheriff to ensure this.
Only if you first get an injunction and then after they violate it they can get up to 6 months in jail for each violation. They cannot get jail time for violating the TCPA but violating a court order will get you jail time. You can't get an injunction in small claims court, however.
Make sure you can collect. You can start collecting this 30 days after the judgment (which allows them time to file an appeal) if they haven't appealed or filed a motion to vacate. Assuming they filed to vacate under CCP 116.740 then the court may order that enforcement of the judgment be suspended under section 116.740(d). So it depends on whether the court ordered that -- if not the judgment is still enforceable. Usually they don't order that.
In the case of an appeal, the judgment is enforceable as soon as small-claims court receives the appeal paperwork back from Superior Court.
If you do it yourself, if the judgment is on someone who is out of state, you need to have it domesticated in the debtor's home state first. This will cost you less than $200 per case. If the Defendant is outside your state (which means either you served the secty of state if you are in calif or in other states you can serve out of state D's) , you need to get the "sister-state judgment" form for his state, fill it out, and file it with the court in his location, and serve that form. See the example: CovingtonJudgment. See also Enforcing a judgment against an out-of-state debtor which is an excellent summary. For example, if you were to enforce a judgment from out of state in California, here's what you do: Sister-state judgments
The simplest is to have a collection agency handle this. They can do it in all 50 states because they can do it all by mail.
You can have the sheriff put a keeper (person who stands around all day waiting for money to come in) at the location.
You should always also start with sending them a form to fill out listing their assets. If they don't return this to you, you can haul their ass into court for a debtor's exam. You can ask the Social Security number, bank accounts, payroll amount or any sales commissions received or due, etc. If you really want to be mean ask the judge if you can have the debtor's rings to pay your judgment, be sure to get bank accounts, amount of cash on them right then, places of employment, addresses, and supervisors, owners of any liens on their personal or real property (these are all legitimate questions but they will be humiliating to the debtor and next time he or she may pay you quicker).
If you get paid part of what you are owed, file a partial satisfaction of judgment form. Here are all the forms you need: California Courts Forms
If they change their company name, you can file a form to amend the judgment. The other side will have an opportunity to appear and oppose (which they won't). See California Courts Self-Help Center Small Claims Collect Your Judgment Collection Problems & Special Situations
If they don't show up for the Debtor's exam, you get to add your attorney's fees and have them arrested. However, you have to hold the exam in their county (per CCP 708.160 (b)).
- CCP 708.110 e) The order shall contain the following statement in 14-point boldface type if printed or in capital letters if typed: "NOTICE TO JUDGMENT DEBTOR. If you fail to appear at the time and place specified in this order, you may be subject to arrest and punishment for contempt of court and the court may make an order requiring you to pay the reasonable attorney's fees incurred by the judgment creditor in this proceeding."
- CCP 708.170. (a) If an order requiring a person to appear for an examination was served by a sheriff, marshal, a person specially appointed by the court in the order, or a registered process server, and the person fails to appear: (1) The court may, pursuant to a warrant, have the person brought before the court to answer for the failure to appear and may punish the person for contempt. (2) If the person's failure to appear is without good cause, the judgment creditor shall be awarded reasonable attorney's fees incurred in the examination proceeding. Attorney's fees awarded against the judgment debtor shall be added to and become part of the principal amount of the judgment.
This 150 mile thing for examining a debtor in court needs some clarification.
Normally, an examination is held in the court where the judgment was entered. CCP 708.160(a) However, an examinee may not be required to attend an examination before a court that is: (1) located outside the county in which the person resides or has a place of business; and (2) more than 150 miles from the examinee's residence or business. CCP 708.160(b).
If the person you want to exam, and this applies to examinations of third parties or persons, is not within the above limitations then you may hold the examination in a court of similar or higher jurisdiction in the county where the judgment debtor (or third person) resides or has a place of business. CCP 708.160(c).
To conduct an examination in a court other than the one in which the judgment was entered, you must: (1) File an abstract of judgment in the court where the examination is sought and pay a $12 fee; (2) File a declaration stating the examinee's place of residence or business; and (3) Make any necessary affidavit or showing for the examination pursuant to CCP 708.110, and 708.120
These steps are found in CCP 708.160(d).
NEVER attempt to notice an examination in the wrong judicial district. It is most likely a violation of the Federal FDCPA venue restrictions. See Fox v. Citicorp Credit Services, Inc. (9th Cir. 1994) 15 F.3d 1507 for further information. Briefly, in that case, it was a violation of the FDCPA venue provision to obtain a garnishment writ in county where judgment debtors neither resided nor signed contract sued upon.
All of this is true for examination of third parties and persons as well.
If the lawyer tells you the Defendant is about to declare bankruptcy and wants to settle for a lesser amount, don't believe it:
- You are being lied to. I do a lot of bankruptcy law. Never believe someone who is "about" to go bankrupt. It doesn't happen. you are being played. No one goes bankrupt over a few thousand dollars. If they are going to file bankruptcy the last thing they are going to do is pay any money on a dischargeable debt. The next time he tells you he is going bankrupt say that is just fine with you, but until he does your efforts to collect the full amount will continue.
- To clarify: any payment to a creditor within 90 days of the bankruptcy filing that's for an antecdedant debt is subject to recovery by the trustee, since it allows the preferred creditor to receive more than he would have if he had shared with other unsecured creditors.
- The only claims that would not potentially be discharged in the bankruptcy are those for faxes that arrive after the petition is filed. It is significantly easier to recover on a claim that's been reduced to judgment than on one that hasn't, but there's otherwise no difference between them. It does no particular good to have a perfected judgment lien against an individual debtor if the property to which the lien attaches is exempt, as real estate in FL, TX and a bunch of other places is likely to be. This is because the debtor can avoid judicial liens to the extent of his exempt equity.
- I just got back from a debt collection seminar at which some of our local Massachusetts experts said the same thing as Ken and Steven: ignore threats of bankruptcy until some counsel you respect sends you a petition that's all ready to file listing you as the only major creditor.
See California Courts Self-Help Center Small Claims Collect Your Judgment More Ways to Collect a Judgment This is a great resource and it talks about seizing and selling assets (like their car, home, bank accounts, and possessions). Seizing cars works great. You have to be very specific about the property to be seized and your costs are added to the judgment if you file a Memo of Costs. You can also have people evicted from their own home (check out Ca Code Civil Procedure 700.080(c)). Liens are nice, but levies (seize and sell) on bank accounts, stuff in their home, etc. are much better.
Collecting a Judgment Sacramento Small Claims Advisory Clinic is also excellent. It tells you how you can have the person arrested if he doesn't show up for his debtor's exam and how you can add on your collection costs. Interest at 10% accrues from the time the final judgment is entered. You can collect for 10 year and renew for another 10 (over and over again). You get to collect on interest on the interest if you renew after 5 years (see Introduction to Collecting Your Judgment for more info on interest on interest; see Introduction to Collecting Your Judgment for info on fees you can recover)
Restitution Guide page 2 is a good resource too.
Under California law, inadequate capitalization alone is sufficient for piercing the corporate veil. So you can go after the officers in this case.
- CCP 685.040. The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment.
From people experienced in collections (note a turnover order requires them surrender the property to a sheriff and is used for small property):
- For your OEX / ORAP (Order to Appear for Examination), you may want to consider a turnover order after examination (CCP §708.205). If you have one prepared blank, the judge can sign an order forcing turnover of any non-exempt property identified in the examination. Just leave space to write in the property description. Not nearly as expensive as a seizure order...
- Even better, a Turnover Order comes under the Court's contempt powers and will subject a debtor to arrest.
- Also be aware of exemptions the judgment debtor may have. My state has a $5700 personal vehicle exemption. If you seize personal property that is exempt YOU may be liable in trespass with punitive damages available.
Here's a great story:
- Patience is sometimes required to collect on a judgment. I got a non-TCPA judgment for $7000 in a case filed in 1995. D was an attorney who moved away during the pendency of the case and was careful to keep such a low profile for years that I could not execute on my judgment. But, eight years after I filed the suit, he got a little too comfortable and bought a nice car for his wife in his own name (he leases his own car). Car registration check a month ago (available to judgment creditors) showed that the car was free of any clouds on title. Sheriff towed his car away this morning. I had a certified check in my hands this afternoon. There can be justice.
For going after a company like fax.com, when a corporation incurs debt, one of two things happens:
1) Bankruptcy If a company is upside down like Fax.com (i.e. failed to retain enough assets to pay contingent liabilities liek the FCC forfeiture), the fudiciary responsibility goes to the creditors, not stockholders, and you can pretty easily show fradulent xfers.
2) No bankruptcy If there is no bankruptcy, and the company simply ceases operations or is dissolved, the debts of the company become debts of the stockholders.
Ask the question... is Fax.com still an operating corp?... go from there. Force them into an involuntary chapter 13, show evidence of fraudulent transfers, and go after Katz's bank accounts.
You can use an Affidavit of Identity to establish aliases for the debtors. See
- Orange county Affidavit of Identity form: l2527
- Collections Law Previous Question List
- How to Collect On a Claim.
- HOW TO COLLECT A COURT JUDGMENT
- Turning Judgments Into Dollars
an excellent book is NOLO Press book: How to Collect When You Win a Lawsuit in California.
Questions for debtors Exam.
You also get up to 35 interrogatories. See TCPA Litigation for interrogatories and motion to compel.
Bring a turnover order and get cash, jewelry, cell phone and other items.
Be sure to ask for a lien at the conclusion of the exam. See also: California Courts Self-Help Center Small Claims Collect Your Judgment Introduction to Collecting Your Judgment Sample Questions to Ask a Debtor
Debtor's exam is described:
- California Courts Self-Help Center Small Claims Collect Your Judgment Introduction to Collecting Your Judgment
You can examine every 120 days, or more frequently if you can justify it (CCP 70.110(c)).
- In Missouri they are generally a waste of time, as the debtors assert their 5th amendment rights and don't answer. If you are clever you get a grant of immunity from the county prosecutor, and that can short-circuit that trick. Also, I always have a general execution and a sheriff on hand so I can take their wallet and watch. Funny (unless they are up on their personal exemptions).
- I recently won a default judgment against Bridge 21 & Brewer Accounting. Brewer has refused to answer rogs, so I ordered up a contempt hearing (still a month away). In the mean time, I have been making regular collection calls. Mr. Brewer has tended to duck those calls over the past few days, and he never returns a call. On the odd occasion when I have reached him, he would always tell me that "Bridge 21 is going to handle this; their attorney will be in touch with you soon." Today, the sheriff served Mr. Brewer with the contempt motion/summons.
- This afternoon I received a call from a nasty guy who claimed to be an attorney for Brewer. He ordered me to cease contact with his client regarding this case. He demanded that all future communications should be through HIM, as he is now entering an appearance in the matter (a day late & $7500 short). When I asked when he would have my check ready, he told me I wouldn't be receiving a check from him. I pointed out that I have a valid judgment and that this is now a collection matter, so I would continue my collection calls to his client until I get paid. (That didn't make him happy at all.) According to the attorney, Bridge 21's counsel has filed a motion to vacate the default judgment (ought to be interesting). I told the attorney that if the judgment is vacated, I'll stop attempting to collect, but barring that, the only way to stop the collection process is to pay the bill. (That really pissed him off.)
- The remainder of the conversation consisted of him yelling that I'd better stop contacting his client and me advising the attorney that his client STILL sends me faxes, even though I have repeatedly requested that they stop. I asked why he believes his client should be insulated from contact from me when I am still forced to receive direct communication from him. At this point, the attorney was so angry that he hung up on me. I wish I would have gotten his name, but I assume I'll receive something (though probably not my check) in the mail from him soon. It's nice to see that Defendants are finally starting to take this process seriously. All it took was a contempt motion.
- Note: harassing or other conduct that rises to the level of a state law tort will get you in trouble. Professional Collectors have certain legal restrictions (such as the hours they can call you, etc). If you aren't a professional collector, you have more leeway. The federal law doesn't apply to a creditor who's directly trying to collect a debt, but some state laws do. Read up on that before you find yourself on the wrong end of a treble-damage lawsuit. Apart from those laws, abusive or harassing conduct can be actionable as well.
For cashing checks, it's easiest to require a certified bank check. Otherwise, try this advice:
- If there is any concern over whether a check will clear or not, take it to your bank and have it sent as a collection item, as opposed to depositing it as a regular item. Your bank will send it to the payee's bank, who will effectively cash the check and send back a bank/cashier's check in return.
- In the event that there aren't sufficient funds in the account when it is presented, you send it with instructions to "hold X days". They will wait for sufficient funds to be available up to the amount of time you have specified. Of course, if the account is closed, there is anything irregular about the check (e.g. bogus signature), or sufficient funds do not become available, it will then be returned unpaid.
- The cost is set by your bank. It will be listed on your bank's schedule of fees for your account type. My bank charges around $20 to send items for collection.
For out of state judgments, see National Judgment Network where you can find someone specializing in the state where the assets are.
You must get your judgment domesticated in the state where the debtor's assets are located. So if you have a California defendant, who banks in Boston, you will need to get a sister-state judgment in Massachusetts, and then have that court issue a writ against the assets in that state. For more info, see Enforcing a judgment against an out-of-state debtor. Here's the California sister-state form ej105 that you'd use to collect against someone in California. If they live here, you have to wait 30 days for them to object before you get a Writ. If they don't live here (i.e., just have assets here), you can get the writ immediately on the same form.
Here's a guy Charles Perez who collects only in Calif, charges 35% on a minimum judgment of $3500. No recovery, no fee. If he can't recover in 6 months, he gives it back to you. The basic rule is due to the effort involved, unless they can make $1000, it's not economical for them to spend time to collect. So you should expect to pay 50% if you have a judgment of $2000. A reasonable structure is they keep the first $1,000 plus 35% of any amount above that. That gives them incentive to collect as much as they can and ensures that they make money on the deal.
Heartland Collection Services will collect nation wide for a 50% fee. Not a bad deal considering. There are no minimums (i.e., they'll collect on any sized judgment).
Lee at JDR Inc. has a 85% recovery rate (only fails when they go bankrupt) and charges 40%. No minimum $ amount. He collects nationwide. 229-385-8905
Typically, you shouldn't pay more than 33% plus costs so 35% all inclusive is a good deal.
If you are suing a common carrier like GCC or Global Crossing, they'll pay your attorney fees for suing them and collecting. The rule is this: post judgment attorneys fees are awardable if authorized by contract or statute. The statute Title 47 USC 206 certainly allows them for those types of judgments. To actually recover them you have to bring a noticed motion under California Rule of Court 870.
Best ways to collect against a person:
- Wage garnishment (they can't adjust his salary even if they are in cahoots with him)
- Bank levy
- ORAP/OEX (they get arrested if they don't show up if the notice was served by a registered process server); you then apply for a bench warrant. You pay $57 for the warrant. They will make 3 attempts to arrest at home. Else, it goes on DMV. Bail out of jail for $1,000 cash goes to your judgment payoff. If they don't show again, you repeat the process, but this time it is 2,500 to get out of jail. Then $5,000, etc.
Both of these can be done by a registered process server and you get much faster turnaround (they can do anything that isn't "physical"). To find out their bank, it's best to ask someone who pays them or who they pay. You can use the account info off of that. by subpoenaing their bank records (or getting it in an OEX), you can get a list of people you can contact. If someone receiving money cooperates with you (e.g., using subpoena if needed), they can give you the banking info, e.g., right before they try to cash the check. If someone who sends money to cooperates with you, you can ask them for the cancelled check and get the bank info off the check. Some banks require you to serve the actual branch where the account is located.
A process server can levy bank accounts statewide. You will need to have the clerk issue a writ of execution specific to the county where the financial institution is in. You will also need a letter of instruction to the sheriff. Even though a process server serves it, the bank remits to the sheriff. The process server will check with the appropriate sheriff for the local rules, and let you know the specifics.
Best way to collect against a business:
- Levy against a third party that owes the debtor money ("any and all monies owed to the judgment debtor" by the third party)
- 48 hour keeper
- Bank levy
Basically, a deputy sits there for 48 hour to make sure nothing goes in or out. During that time, the sheriff does an inventory. If they don't pay off the debt, they typically will seize, store, and sell whatever they can..
You probably won't be able to get a turnover order, assignment order, or seizure order in small claims. While this is theoretically possible (and listed on the California Courts Self-Help Center Small Claims Collect Your Judgment More Ways to Collect a Judgment), nobody's heard of it being done before. The court clerks haven't seen it done and the process servers haven't heard of it being done either. If you've seen it done, let us know.
Assignment orders are done all the time. Seizure orders are rare. Turnover orders are popular at the end of debtor's exams. There is no minimum time for a 48 hour keeper...they can seize and move it out immediately if you want; the 48 hour keeper is really an anachronism since the law has changed. You can typically have 8 hour keepers tapping the till for as long as it is profitable for you. Best ways to collect: Assignment order, bank levy, wage garnishment, inventory seizure of ongoing business. Once you have a judgment, attorneys are allowed to represent you at all proceedings, e.g. your attorney can do the ORAP. You can do an ORAP of a third party or subpoena records in conjunction with an ORAP (since it sets a date for the info to be produced). You can file in superior court to consolidate your small claims judgments into a single judgment. If there are >50 creditors, you can file a class action to do this so there is a single creditor class that goes after them.
Beware of previous liens on assets, e.g., FCC judgment. So you can spend a lot of money and be 2nd in line after the FCC.
Bryan Sampson (Sampson & Associates) in San Diego (619) 557-9420 specializes in hard to collect debtors. This guy is truly the master. $250/hr ($100/hr for paralegal). 3 attorneys; 3 paralegals.
After they pay you
Be sure to inform the court. You must file a short Acknowledgement of Satisfaction of Judgment portion of the Notice of Entry of Judgment. However, if you recorded an Abstract of Judgment with the County Recorder, you must file the full page Acknowledgement of Satisfaction of Judgment (Form SC-12a) after signing it in front of a notary public and recording it in every county where you filed the abstract.
If you aren't eligible for small claims
- If the defendants are out of state, or you a facing an appeal, or you want to file a class action, you need to file in Superior court.
- You will have to file a complaint and serve the defendant.
- Here is a sample Superior Court complaint that you can just fill in the blanks and file. You can have an attorney represent you in court. This is pretty cheap if the other side doesn't show.
- If you want to do a bit more work, here is the actual complaint that Covington and Burling filed against fax.com which is excellent that you can modify to fit your circumstances.
- If the other side has a history of fighting lawsuits in court (get on the JunkFax-L list and ask; fax.com will fight in court for example) then you have a choice...There are two ways to do this: on your nickel or on your attorney's nickel. I'd suggest the latter approach (unless you are wealthy and desire to find out how poor people live). So you need to find a lawyer who will take your case on a contingency basis. This means they don't charge you a dime (except some small expenses) and split the rewards with you. But they'll typically only do this by pursuing class actions, though sometimes a demand letter from an attorney with a track record of winning in court will be sufficient. They can often get a settlement quite quickly if they are serious and the defendant believes they are serious. This means that you've got to be willing to pursue the case if they don't settle. The more cases you pursue and win, the more credible your demand will be. I've personally made thousands of dollars at no risk to myself by hiring an attorney (on a contingency basis) that the other side knows will file if they don't settle. See Junk fax attorneys for a list of attorneys in your area who take on these cases.
Small claims courtroom script
- Explain purpose of the case
- Explain facts of the case
- I received a fax from xxxx on date y (show the fax to the judge)
- Explain that the fax was sent without your express invitation
- Ask for treble remedy of $1,500 since the fax was sent willfully (see the Junk Fax Q&A)
- Explain that the TCPA applies to this case
- If the judge hasn't seen one of these cases before, provide documents about the TCPA
47 U.S.C. § 227(a)(2)
The term telephone facsimile machine means equipment which has the capacity
(A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or
(B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.
47 U.S.C. § 227(a)(4)
The term unsolicited advertisement means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission.
47 U.S.C. § 227(b)(1)(C)
It shall be unlawful for any person within the United States to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine;
47 U.S.C. § 227(b)(3).
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State -
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.
If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.
Interpreting the law
- The TCPA pre-empts all less restrictive state law. California law does not pre-empt federal law; California law provides additional restrictions
- The federal TCPA applies to all faxes, intrastate and intrastate
- TCPA been found to be constitutional (it's been around since 1991; if it wasn't constitutional, you'd never see such major awards). The 9th circuit has upheld it as constitutional (applies to California only... your circuit depends on where you live)
- The proper venue is state court; small claims court is applicable if the amount is small
- The TCPA was designed as a deterrent, not to provide compensation for actual damages (it is a remedial statute and provides a $500 statutory remedy)
- The court has no discretion in deciding whether to award the remedy - it must rule based on the law, and if it finds for the plaintiff, the remedy of $500 is mandatory.
- The judge is constitutionally bound by the laws of the U.S. Congress when ruling on even small claims matters, and that he lacks any discretion in this regard.
- If the court finds that the sender intended to send out unsolicited advertisements, such as by purchasing a list of fax numbers or using a fax broadcasting service or using some other list than a list of existing customers, then the court may, at its discretion, assess a remedy of $1,500 per violation.
- Ambiguity of "opt in" isn't ambiguous except to a few judges (see Junk Fax Q&A). Calfornia has not opted out of the TCPA.
- The burden is on the plaintiff to prove his case. However, if the plaintiff says no express consent and the fax looks like a broadcast ad, then the balance shifts to the defendant to show with preponderance of the evidence that the recipient gave prior express invitation or permission. Publication of a fax number does not constitute an invitation to send a fax.
- Win a few TCPA cases before you try to argue the finer points of "per violation" vs. "per fax" as most judges do not understand the distinction. If you confuse the judge, you may lose.
- For those of you outside California who win small claims judgments against companies inside California, email firstname.lastname@example.org and he will send you the very simple California Judicial Council form in .PDF format to domesticate your judgment in California. An out of state judgment against a California company means nothing until it gets domesticated. Then the corporate credit reporting bureaus pick it up.
- You do not have to name all joint tortfeasors in a suit. You can elect to sue just one of them if you want. If a party is found to be indispensable, then you can be compelled to join the minto the suit. That question can be state specific, i.e., you don't have to name everyone.
Have you had success in district court or small claims court? Will you write up what your process and submit it to our site? Send it to us at Junk fax contact info.
For interesting legal tidbits, see